A Louisiana appeals court last week reversed the grant of summary judgment against a plaintiff injured during his attempt to “ride” a oil well pump like it was an amusement park attraction. Payne v. Gardner, No. 10-0021 (La. Ct. App., 10/27/10).

Thirteen-year-old Henry Goudeau, Jr. sustained injuries when he climbed onto the moving pendulum of an oil well pump and attempted to “ride” the pendulum. When he climbed on the moving pendulum, his pants became entangled in other parts of the pump and, as the pendulum continued to move upward, he alleged he sustained severe personal injuries.

Defendants moved for summary judgment, pointing to the undisputed facts that they manufactured the pump for the sole purpose of extracting oil from the ground; they never intended for anyone to ride the pump; and the plaintiff would not have gone near the pump had his mother been with him.

Plaintiff argued in opposition to the motion that there existed a foreseeable risk that children would attempt to play on the oil well pump. Under Louisiana law, the manufacturer of a product is liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.  Plaintiff thus argued that there were
genuine issues of material fact concerning what constitutes the “reasonably anticipated use” of an oil well pump.

Under the Louisiana product liability act, reasonably anticipated use’ means a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances. This is an objective inquiry, which requires the court  to ascertain what uses of its product the manufacturer should have reasonably expected at the time of manufacture.  Plaintiffs pointed the trial court to 3 cases from California, Texas, and Oklahoma, over the past 30 years in which children had been injured while attempting to “ride” on an oil well pumping unit. See Titus v. Bethlehem Steel Corp., 91 Cal.App. 3d 372, 154 Cal. Rptr. 122 (Cal.App. 2d Dist. 1979); Burk Royalty Co. v. Pace, 620 S.W. 2d 882 (Tx.App. 12th Dist. 1981);  Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989).  And the caretaker of the well thought he had heard about a similar incident.

The appeals court thus found that there was conflicting evidence on whether an attempt to “ride” the pumping unit is a use or handling of the pumping unit that the pump maker should reasonably expect of an ordinary person in the same or similar circumstances. This “scintilla of direct evidence” presented by plaintiff was sufficient to allow a reasonable juror to conclude that the defendant should have expected an ordinary person in the same or similar circumstances to use
or handle the pumping unit in this way.

What?  A manufacturer is not responsible for every conceivable or foreseeable use of its product.  All this scanty evidence suggested was that the misuse was foreseeable.  Not that it was reasonably foreseeable, not that a manufacturer should reasonably expect such misuse, certainly not that this was the act of an ordinary person under the circumstances. There was no evidence indicating that this accident occurred pursuant to a use reasonably expected of an ordinary consumer.

The Louisiana Act expressly rejected the prior standard that a seller was liable for all reasonably foreseeable uses and misuses of the product.  Moreover, the statute focuses the inquiry at the time of manufacture.  This 50-year old pump was made and sold before any of the incidents relied on by the court to reverse summary judgment.  How do accidents that occurred after the pump at issue here was manufactured put the manufacturer on notice?